fbpx
Rosewood logs seized in March 2014 worth US$50 million (S$70 million). (PHOTO: AVA)

Court of Appeal reserves judgment in criminal reference to clarify legal criteria of “import” and “in transit” under the Endangered Species Act

by Guo Rendi

On Monday (2 July 2018), a five-judge Court of Appeal reserved judgment on a landmark criminal reference filed by a Singaporean businessman and his firm, who were convicted of illegally importing Madagascan rosewood logs by the High Court in March last year, seeking to clarify the correct legal test to determine when scheduled species, being protected under the Endangered Species (Import and Export) Act, are considered to be “in transit” upon landing in Singapore and therefore does not fall within the meaning of “import”.

This came after the Court of Appeal had given the green light to Mr Wong Wee Keong and his firm, Kong Hoo (Private) Limited, to refer two questions of law of public interest for its determination in August last year, after reframing one of the questions posed.

The hearing was presided by Chief Justice Sundaresh Menon and which also includes Judges of Appeal Andrew Phang, Judith Prakash, Tay Yong Kwang and Steven Chong. Wong and Kong Hoo were represented by a seven-man team of lawyers from three different law firms in the present criminal reference before the Court of Appeal, led by Mr Murali Pillai of Rajah & Tann and which also includes Mr Haridass Ajaib of Haridass Ho & Partners and Mr Choo Zheng Xi of Peter Low & Choo. The five-person Prosecution team was led by Solicitor-General Kwek Mean Luck.

In an extremely packed courtroom, to the extent that more benches had to be brought into the public gallery for more seating, Mr Pillai told the five-judge panel that in respect of what is called the “sole purpose” condition (i.e. that the scheduled species in question is brought into Singapore solely for the purpose of bringing it out of Singapore), his team and the Prosecution had agreed, contrary to what Justice See Kee Oon had said in his judgment last year, that a defined date of departure for the scheduled species is not a requirement for the “sole purpose” condition to be satisfied.

There were also some disagreements as to the burden of proof on the Prosecution in respect of proving that the “sole purpose” condition was not satisfied. In Justice See Kee Oon’s written judgment related to an earlier tranche of the proceedings in February 2016, he had suggested that since the “sole purpose” condition is a matter of fact within the knowledge of Wong, the burden of fact is upon him to prove it, instead of the Prosecution to prove their case against him beyond a reasonable doubt.

As for the “control” condition (i.e. that the scheduled species must be under the control of the Director-General of Agri-Food and Veterinary Services (AVA) or any other authorized officer for not more than 14 days before they were dispatched to overseas), in support of Justice See’s earlier decision, Solicitor-General Kwek had argued that apart from the scheduled species being placed within a secured area under the control of the Director-General; there must be actual knowledge on the part of the Director-General with regards to the existence of the scheduled species before the “control” condition can be satisfied. This in turn,  He stressed that such an interpretation would prevent attempts by smugglers to abuse the regulations by leaving the scheduled species within Singapore indefinitely.

However, Justice Prakash raised the fact that such concerns of abuse had already been safeguarded by other provisions of the same statute, such as the 14-day limit in relation to the Director-General’s control over the scheduled species. Justice Chong further queried the Prosecution on why they did not charge Wong and his firm on the alternative charges of keeping the rosewood logs in transit without a valid export permit, when they could have done so with the charges that Wong and his firm were eventually convicted of.

Justice Phang further described the Prosecution’s expansive interpretation of the legal criteria for the “control” condition as an “afterthought argument just to secure the conviction at all costs”.